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February 28th, 2012
09:46 AM ET

Judge’s dismissal of atheist's harassment claim against Muslim makes waves

By Dugald McConnell and Brian Todd, CNN

(CNN) - A protester who ridiculed the Muslim prophet Mohammed claims he was assaulted by a Muslim who was offended by the stunt, but a judge has sympathized with the alleged perpetrator, in a case that has drawn national attention.

Self-proclaimed atheist Ernie Perce marched in a Halloween parade in Mechanicsburg, Pennsylvania last October, dressed in a costume mocking Mohammed.

In a YouTube video he posted, Perce can be seen wearing a long fake beard, a white turban and green face paint, calling out provocative phrases like: "I am the prophet Mohammed! Zombie from the dead!" Perce and someone else in a zombie-themed pope costume are carrying a banner that reads "The Parading Atheists of Central Pennsylvania / Ghoulish – Godless – God-Awful."

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Then a man who is not seen on the video can be heard saying, "Take it down." Amid sounds of a scuffle, Perce can be heard saying "Hey, he's attacking me!"

Perce told CNN affiliate WHTM that the man “grabbed me, choked me from the back, and spun me around, to try to get my sign off that was wrapped around my neck."

Based on Perce's complaint, a Muslim named Talaag Elbayomy was charged with harassment. But on December 6, District Judge Mark Martin dismissed the case, saying it was one person's word against another's, and that there was no other evidence or eyewitness testimony to prove that Elbayomy had harassed or touched the alleged victim.

The judge also scolded Perce, saying he’d been needlessly provocative on an issue sensitive with Muslims.

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"You have that right, but you're way outside your bounds of First Amendment rights," Martin said, according to a recording Perce made of the court hearing. "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did."

The judge went on to point out that in many Muslim countries, ridiculing Mohammed could warrant the death penalty under Islamic law.

Critics say Martin's lecture shows he used Muslim cultural grounds to excuse a deplorable assault, and failed to defend an atheist's First Amendment rights.

"That's greatly disturbing to people that believe in free speech," said George Washington University law professor Jonathan Turley. "You can say things that are hurtful to others. We hope that you don't, but you most certainly can be protected. People like Thomas Paine spent his entire life ticking off people across the colonies."

Former terrorism prosecutor Andrew C. McCarthy, writing on the blog of National Review, accused the judge of allowing the Muslim suspect to invoke a "Sharia defense – what he claimed was his obligation to strike out against any insult against the prophet Mohammed."

And Perce said of Judge Martin, "He let a man who is Muslim, because of his preference of his culture and his way of life, walk free, from an attack."

The judge, in a phone interview with CNN, defended his ruling.

"The commonwealth didn't present enough evidence to show me that this person is guilty beyond a reasonable doubt," Martin said. "That's why I dismissed the case. Nothing as nefarious as what everyone's thinking, that I'm a Muslim or I'm biased. I'm actually a Lutheran."

Martin added that he has served three tours of duty, totaling more than two years, in Iraq and Afghanistan, where he learned more about Muslim culture.

"It just amazes me that people think that I'm biased towards Islam," he added. "I got sniped at once, I got ambushed once, I got attacked by a mob once... I've served close to 27 years in the military - and have gone overseas - exactly to preserve that right [freedom of speech.]”

But Martin also repeated his criticism of the atheist protester. "With rights come responsibilities. The more people abuse our rights, the more likely that we're going to lose them," he said. " We need to start policing up our own actions, using common sense, in how we deal with others."

Attorney R. Mark Thomas, who represented the Muslim suspect, blamed Perce for the Halloween altercation. "The so-called victim was the antagonist," he told WHTM. "I think this was a good dressing down by the judge."

A blog post by the group American Atheists disagrees. "That a Muslim immigrant can assault a United States citizen,” it says, “in defense of his religious beliefs and walk away a free man, while the victim is chastised and insulted... is a horrible abrogation."

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- CNN Belief Blog

Filed under: Atheism • Halloween • Islam • TV-The Situation Room

soundoff (2,453 Responses)
  1. denny

    Another hard left liberal judge writing his own laws. This is exactly the trash the soon to be President Gingrich will soon have federal marshals escorting judges before Congress to be impeached.

    February 28, 2012 at 1:52 pm |
  2. Chris

    If the judge found insufficient evidence of the attack, there isn't much to argue over.

    If, on the other hand, the antics of the religion insulter (other than if he committed a physical assault and the defendent responded in self defence) had ANYTHING to do with the decision, this is a HUGE variation of the way the first amendment has been interpretted by the Supreme Court or most involved in US law for the last century.

    Generally, in this country, we don't believe in "Fighting words". As a matter of law, assault cannot be justified by insults.

    So – I think this is going to come down to whether it is "reasonable" (in the legal sense) for the judge to have come to the finding of insufficient evidence. If not, although his finding can't be overturned (double jeopardy), he risks legal review, sanction and perhaps dismissal by higher courts.

    February 28, 2012 at 1:52 pm |
    • Maya

      There wasn't insufficient evidence. The judge excluded evidence that didn't fit his preconceived version of events. First, he excluded the video. Then, he excluded the testimony of the police officer who took the complaint and spoke to both the victim and attacker, to whom the attacker ADMITTED assaulting the victim.

      February 28, 2012 at 1:57 pm |
    • reason

      There were witnesses as seen in the video and the attacker even admitted assaulting him, to a police officer no less.

      This Judge Martin is a disgrace.

      February 28, 2012 at 1:59 pm |
  3. HeIsGod

    HAHAHAHA!!!

    GOOD FOR THE JUDGE AND FOR THE MUSLIM, even though I am not a Muslim and don't believe in their "god", I will not dare to insult his belief.

    THE ATHEISTS GOT WHAT HE DESERVED!

    February 28, 2012 at 1:52 pm |
    • Maya

      So it is okay to batter people now if they offend you? Great. I'm taking a bat to the next obnoxious street preacher I see.

      February 28, 2012 at 2:06 pm |
  4. clearfog

    I can understand but not condone the ignorance of the posters who do not know the first thing about the First Amendment. I cannot understand and do condemn the judge for not knowing. He should be impeached. He is an embarrassment to the profession.

    February 28, 2012 at 1:51 pm |
    • reason

      The judge is a disgrace. He actually called the VICTIM a dufus.

      February 28, 2012 at 1:55 pm |
  5. dana

    What a bunch of silly people. Legally, no case. Morally bereft. I'm talking about the people responding. The amount of hate piled on a questionable complaint that ended as "he said/he said" and tossed out. Why do Americans hate Islam? Do you believe that Islam is Anti-American? Is this the religious war you all want?

    February 28, 2012 at 1:51 pm |
    • kaos

      Yes.. They started it, let us finish it..

      February 28, 2012 at 1:53 pm |
    • paul

      No case if you discount a confession in court by the attacker

      February 28, 2012 at 4:46 pm |
  6. Jake

    DaEvin, please stop with the link. Florida Family Association is a bunch of Islamophobic creeps who will not be happy until every Muslim in America is totally silent and invisible, and that's the only real reason they're interested in getting this judge removed. Nobody with a conscience would help them out.

    February 28, 2012 at 1:50 pm |
  7. R. Smith

    What do atheist organizations do anyway? Do they hold weekly meeting to "not believe"? Do they have beauty contests to crown " Miss UnGodly". Without a sabath do they just rest all the time? With no moral compass, do they have role models? What ? I'm just curious!!!!

    February 28, 2012 at 1:49 pm |
    • Jake

      Not much in the way of organization or meetings, but since they're people with functioning brains they do have a moral compass, thanks. Surely you don't think *you're* so amoral that you need to look up in a book whether something is right or wrong; why assume that about atheists?

      February 28, 2012 at 1:52 pm |
    • Floyd from Ilinois

      Well, in the hospital where my wife works, a lot of them volunteer to work Christmas so that the Christian employees can be home with their families.

      February 28, 2012 at 1:52 pm |
    • clearfog

      You are indeed curious. Very curious.

      February 28, 2012 at 1:54 pm |
    • Maya

      No moral compass? Hey, we aren't the ones who only do what is right because of fear of God. If anyone is morally inferior, it is the religious.

      February 28, 2012 at 1:54 pm |
    • Athiest king

      why dont you come to a meeting a find out.

      February 28, 2012 at 1:55 pm |
    • SPA Knight

      So Jake, you're saying that because Atheists think, then they are able to determine their own moral compass irrespective of their feloow man/woman?

      February 28, 2012 at 1:58 pm |
    • Al

      You know that all social animals have a moral compass or else they could not be social animals. Evolution is a beautiful thing.

      February 28, 2012 at 1:58 pm |
    • SPA Knight

      Al, I think the moral compass in the animal kingdom is survival of the fittest.

      February 28, 2012 at 2:00 pm |
    • Doc Vestibule

      We are selfish creatures by nature, yet our survival depends on cooperation. In order to balance these two conflicting instincts, mankind has had to develop rules that allow room for both.
      These rules are not the same for all communities – hence we've had so many different types of religion and government throughout history.
      Religion binds communities together by giving a common frame of reference. Shared fears (like divine retribution), hopes (like going to heaven) and rituals allow the instinct for self preservation to extend beyond one's self and immediate family.
      This is why the great majority of evolutionary biologists find no conflict between religion and science – as long as religion is recognized solely as a social adaptation.

      February 28, 2012 at 2:02 pm |
    • R. Smith

      I guess we can definitely surmise that they don't have a sense of humor. Oh and that intellectual superiority thing, drop that too, cause if there really is a God you'all are so screwed.

      February 28, 2012 at 2:10 pm |
    • HB

      SPA Knight

      Follow your own moral compass? That's what the Muslim did and everyone is angry. What if my moral compass tells me that it is okay to kill someone who hits my child? I believe that it is morally right to defend my child in this way. Thou shalt not murder no longer applies and my moral compass wins out. Everyone has different moral compasses so who's wrong? Oh, laws keep us in line? They follow someone else's moral compass who felt that they were for the good of society. We all follow someone's moral compass – we don't necessarily get to choose our own.

      February 28, 2012 at 2:13 pm |
    • BRC

      @R.Smith,
      Oh really, and which God leaves us most screwed? How are you that an all powerful all knowing, supposedly benevolent being actually cares about how you pray more than how you live?

      February 28, 2012 at 2:22 pm |
    • SPA Knight

      HB, unless I'm reading your comment incorrectly, you and I agree that individuals cannot establish their own moral framework without considering others because ultimately there needs to be moral absolutes and truths precisely because we as individuals can justify any behavior even though we have the power to think for ourselves. I was responding to Jake who claimed that atheists had an ability to discern morality simply because they had functioning brains. That is relativism and leads to chaos without boundaries correct?

      February 28, 2012 at 3:28 pm |
    • HB

      SPA Knight,

      I bow and ask forgiveness. I totally misread what you wrote. Mea Culpa my friend.

      February 28, 2012 at 9:23 pm |
  8. paganguy

    Atheists are just part of another religion. They BELIEVE – but don't know, if there is a god out there.
    The operating word is BELIEF. It is a religion.

    February 28, 2012 at 1:49 pm |
    • reason

      Atheism is a religion like abstinence is a sex position.

      February 28, 2012 at 1:53 pm |
    • SPA Knight

      So they believe in something but they don't know what it is correct? I think that is the definition of delusion.

      February 28, 2012 at 1:55 pm |
    • smitty

      Hey Idiot, thats agnostics who believe in a higher power not atheists. Atheists believe in fact and reason not faith and fairy tales. Why is every religion allowed to state their opinions or beliefs but when a non-religious group tries to do the same thing there vilified?

      February 28, 2012 at 1:58 pm |
    • Al

      You're something of an atheist. You don't believe in all 3,000 gods do you? Basically, you don't believe in 2999 gods and I don't believe in 3000. See, we're not that far apart...

      February 28, 2012 at 1:59 pm |
    • fintastic

      One more time for the ignorant...

      Atheism is a LACK OF BELIEF

      February 28, 2012 at 2:28 pm |
  9. pat carr

    This really is an outrage. the judge should be removed from the bench. I hate christianity and find it offensive. Does it give me the right to punch someone in the face trying to tell me the "good news"? I'd bet not. The judge sent the message we are to be afraid of Islam and that it is OK to assault someone.

    February 28, 2012 at 1:49 pm |
    • SPA Knight

      We are afraid of Islam...look at how many times the Obama Administration apologizes for buring 2 Korans. The Taliban respond by killing 8 and wounding 12.

      February 28, 2012 at 1:53 pm |
  10. paul

    It does make you wonder where this judge would draw the line. The Islamist's culture tells him he must use violence against people that offend him, it also tells him he can kill his wife or daughters if they offend him. Where do you draw the line. We have a culture here in America too, and if the Islamist cannot fit in it, then he should leave. We should not adjust our culture to fit any particular immigrants peculiarities.

    February 28, 2012 at 1:49 pm |
  11. Iqbal Khan

    U be the judge after watching all three parts,9-11 was indeed an inside JOB!

    [youtube=http://www.youtube.com/watch?v=eBAEk2dBm4E&w=640&h=390]

    February 28, 2012 at 1:48 pm |
  12. Al

    So if I punch the local church pastor for saying that non-believers are evil, miscreants, I'm within my rights?

    February 28, 2012 at 1:48 pm |
    • reason

      According to this judge!!

      February 28, 2012 at 1:49 pm |
    • kaos

      Legally no.. But in this idiot judge's juristiction I guess it would be ok..

      February 28, 2012 at 1:51 pm |
    • Al

      Next time I catch one of your church goers leaving your banal tracts on my door, I'm gonna point out this case law to you as I pummel you for leaving your offensive litter on my property. 🙂

      February 28, 2012 at 1:53 pm |
    • R. Smith

      Do you people actually read? I mean the whole article? Are you people really this stupid and ignorant? What do you do just ignore the the part that doesn't support your misplaced anger? This looks like a chat full of 3rd graders. Grow up. The judge did NOTHING WRONG!!!

      February 28, 2012 at 1:59 pm |
  13. kaos

    Mohammad liked little boys.. Don't think I spelled it right but I don't care.. He was just a towel headed desert rat.. I spit on your prophet.. Guess what, those statements are protected speech..

    February 28, 2012 at 1:47 pm |
    • R. Smith

      You are a coward. Go to Iran, Afganistan, or Lybia and scream that on the street. Please!

      February 28, 2012 at 2:02 pm |
  14. Tyler

    Why is the language around atheists always so weird? Self-determination is the ONLY thing that matters with respect to philosophy and faith; "Self-proclaimed atheist" should always be written as "atheist"; anything else just shows bigotry from the author.

    February 28, 2012 at 1:47 pm |
  15. Rob

    This was a Halloween parade folks. If you are sensitive, you should avoid that day like the plague. Not quite sure what this Muslim guy was doing there at the parade if he is supposedly so righteous. However, the costumes sound prettty darn funny.

    February 28, 2012 at 1:46 pm |
  16. The Ultimate Authority on Everything!

    If you want to personally ask the judge what he was thinking, he can be reached at 717-766-4575.

    February 28, 2012 at 1:46 pm |
    • Elspeth

      file a complaint about the judge here
      http://judicialconductboardofpa.org/

      February 28, 2012 at 1:47 pm |
    • clearfog

      Again, thanks for the link. Downloaded, filled out, enveloped, stamped, and soon mailed.

      February 28, 2012 at 3:09 pm |
  17. Dave214

    If Fred Phelps protests a soldier's funeral in this judge's district, I'll be there with a baseball bat and a smile.

    February 28, 2012 at 1:45 pm |
    • Elspeth

      Right on man!!!

      February 28, 2012 at 1:46 pm |
  18. Altee11

    The judge has ruled that it is ok for the man who attacked the atheist to teach his child that violence is the correct way to resolve disputes. This judge has done the wrong thing.
    He could have ruled as he did and still taught the man accused of attacking on the dangers of not respecting 1st amendment rights. Instead he gave the man license to go around and try to silence others' 1st amendment rights. This sets a horrible precedent; do all judges now need to scold 1st amend right exercisers and give attackers free reign to attack?

    February 28, 2012 at 1:45 pm |
  19. Scott

    This is the United States where we have the freedom of speech.

    If you want to dress up like zombie Mohammad, you are allowed to.
    If you want to dress up like a molesting priest, you are allowed to.

    It may be in poor taste, and the guy was a jerk for doing it. But you are allowed to be a be a jerk.

    What you are NOT allowed to do is assault people –even if they are being a jerk.

    February 28, 2012 at 1:45 pm |
  20. murray

    Pennsylvania State Judicial Review Board,,, Call them at 717-772-3771 and ask why Justice Martin hasn't been removed from the bench for using Sharia to decide cases.

    February 28, 2012 at 1:45 pm |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.